Where Are Black Lawyers Today?

Volume 3 • Issue 5 • July/August 2017
Cover
Main Article Image

The Legal Profession in the Age of Obama

Black lawyers on racial progress in the profession

When the Center on the Legal Profession set out to complete its initial survey of all living black Harvard Law School (HLS) alumni in 2000, its goal was to document the achievements of the HLS’s black graduates and to investigate the significance of race in the careers of black lawyers. The serendipitous timing of this survey would not become wholly apparent until eight years later, when the country elected its first black president, an HLS graduate and lawyer himself, Barack Hussein Obama. Eight years after that momentous event and during the final days of the Obama administration’s second term, the Center launched an update and expansion to the 2000 survey, again reaching out to virtually all living black HLS alumni (see “Intersectionality and the Careers of Black Women Lawyers”) and again with the objective of measuring the achievement of black graduates and the significance of race in their professional lives.

With these two surveys—henceforth referred to as the 2000 survey and the 2016 survey—which roughly bookend the rise of candidate Obama’s presidential campaign and the close of President Obama’s final term in office, we are presented with an opportunity to observe the extent to which the election of the first black president has or has not impacted the experiences of a specific group of professionals: black lawyers. Because the 2016 survey was intended to be comparable to the 2000 survey, many of its questions pertaining to racial progress in the legal profession are identical to those posed 16 years prior, providing meaningful answers to basic questions: What has changed? What has remained the same? What is the best way forward? The 2016 survey also included new questions that expressly asked respondents to reflect on the election of the first African American president and its effect on the legal profession and prospects for black lawyers.

“There were large stretches of time where I was the only black associate in the firm, or I was one of two black lawyers out of several hundred,” says Yalonda Howze. “So, you’re definitely aware of your identity.”

In this article, we will consider this data, but also contextualize it with the perspectives and reflections of three lawyers from across different generations, bringing with them different experiences involving race within and outside of the profession. In some cases, their perspectives confirm the results of the survey as it applies to their lives and careers; in other cases, they offer counterpoints to more-generalized findings. What we are left with is a unique glimpse at how race relations in the legal profession are perceived by black lawyers today and how they have changed since the turn of the century, before and after the presidency of Barack Obama.

The dual environment

Yalonda Howze left her native Detroit for Cambridge, Massachusetts, to study at the Harvard Divinity School, planning for a career teaching philosophy and religion. It was not until she engaged with cross-disciplinary work involving the Harvard Business School and the Harvard Kennedy School of Government, among others, that she realized she wanted to spend her career taking this more practical, pragmatic approach to her work and to her desire to effect change. Naturally, this brought her to a career in the law. Today, Howze is a partner at the law firm of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, in Boston, where she specializes in complex tort and product liability litigation, sits on the firm’s hiring and diversity committees, and is heavily involved in its pro bono work.

In a recent interview with The Practice, Howze was asked about the role race has played in her experience as a lawyer. She explains that while there were some ways in which her identity as a black lawyer was a net positive, and while experiences will differ from one firm to the next, it was also often isolating or otherwise unhelpful in advancing her professional goals. “When you’re working in law firms, racial identity is complicated. That’s largely because law firms are generally not very diverse. And so when you say the practice of law, I think it can depend on where you’re practicing,” says Howze. “For me, there were large stretches of time, for example, where I was the only black associate in the firm, or I was one of two black lawyers out of several hundred.  So, you’re definitely aware of your identity.” She continues:

In terms of it helping to forge relationships, it’s a much harder thing when you are, what I might call, an extreme minority—when you don’t have enough numbers to create a cohort. In that kind of environment—and I’ve certainly worked in that kind of environment—you’re not really going to form bonds based on racial identities. So I won’t say it helps. You will, however, be noticed. Everybody will know who you are if you’re the only African American woman working in the firm. The helpful part about that is when you do a good job on something—whether for another attorney in the firm or an external client—it helps build your reputation quickly in that people know who you are, which is certainly a positive. On the flip side of that, your referral network can be small, and you may not find mentors as easily, so personally I have not found it useful to bond around race in the law firm setting.

Like Howze, John W. Daniels Jr. did not originally intend to enter the legal profession. After starting out pursuing a doctorate degree and working with the Harvard School of Education, Daniels decided a law degree was the best way to pursue those interests. He took a job as a corporate and real estate lawyer back home in Wisconsin and eventually became national president of the American College of Real Estate Lawyers. Starting as the first black associate in the firm’s history and working his way up in the firm of Quarles & Brady, Daniels became a partner and then, in 2007, was elected as the chairman of the firm, making him the first African American to enter a major law firm as an associate and go on to become its chairman. Respected throughout the profession for his accomplished career and civic engagement, Daniels remains chairman emeritus to this day. Commenting on this growth, Daniels explains, “When I entered the law firm environment, I initially thought that the ability to navigate in that environment was really a function of being able to connect with clients.” He goes on, “From the very beginning I understood that dynamic of it. What I found was that if you had a good aptitude for that dynamic, it mitigated against the barriers around race. If you can gain the client’s trust and confidence, it reduces—but does not eliminate—race as a barrier to serving the client.” However, Daniels notes, black lawyers also need to operate in what he calls a “dual environment.”

If you look at really very successful African American practitioners in law firms, they operate in a dual environment. They are part of the institutions, but in addition to that they always have to be conscious of creating a certain element of comfort and trust, whereas their colleagues’ ability to create that is more a function of technical proficiency. For African American lawyers, being technically proficient is not always enough. This intangible notion of how you integrate really talented African Americans on your team—that is still a challenge. In Big Law, that becomes important when it comes to passing down a client or engaging people on your team. Part of it is a function of technical proficiency, but a part of it is just comfort. I mean, there’s no other way to get around it.

This dual environment is still visible to young lawyers just starting their careers in the legal profession. The career of one such attorney, who prefers to go by Jane, was in many ways shaped by this duality. Born in the same hospital as Barack Obama 23 years after the future president to a white mother and black father, Jane grew up in Hawaii with what she describes as an “atypical” racial experience. “I am a multiracial woman who typically presents as either white or racially ambiguous,” says Jane, “so people typically identify me as Caucasian.” The population of Hawaii has never been majority-white (and in fact, whites are not even the plurality), she points out, “which makes it a unique place to grow up in the United States.” Jane entered law school during the height of the 2008 presidential campaign, which would eventually propel Obama into office, and graduated in 2011 in the lead-up to Obama’s second term. After spending several years at corporate law firms of various sizes, Jane shifted to the type of legal career she always wanted—public interest—and is currently an attorney at a public interest law clinic.

Survey results suggest that events over the past 16 years—including the election of President Obama—have not changed black HLS graduates’ perception of the way that race continues to structure legal careers.

Although Jane is careful to characterize herself as fortunate and her entry into the legal profession as privileged, the issues around race she saw in her private practice career are still fresh in her mind. “Working as a multiracial attorney in private practice was eye-opening,” she recalls. “My presence allowed firms to check the diversity box, yet I felt that many white lawyers were more comfortable interacting with me than other attorneys of color simply because I presented as white. That was a very strange position to be in.” For others, it was different. Indeed, Jane could see implicit—albeit clear—racial divides. She explains:

The race dynamics in many law firms can be frustrating, especially when you consider the numbers. The community of black associates is often quite small, and there is typically only a handful of black partners. In Big Law, I was also disappointed to see that there were more attorneys of color who were not associates but instead in non–partner-tracked attorney positions. These attorneys were often required to focus almost exclusively on discovery and rarely given opportunities to work on more substantive projects. Sadly, I felt that many law firms that touted robust diversity programs also fell subject to this obvious color line.

Many of these sentiments are captured in data from the Center’s 2016 report on the state of HLS’s black alumni noted above (see “Intersectionality and the Careers of Black Women Lawyers” for a full summary of the study). The report provides a wealth of data regarding information such as career satisfaction, first jobs, and major transitions of black graduates throughout their careers, including specific questions relating to race within the workplace. The first set of these questions asked about the respondents’ beliefs on the state of racial progress in the legal profession, and the second on the impact the election of the first black president has had on a number of issues. Answers were given on a seven-point scale, where 1 corresponds to “strongly disagree” and 7 corresponds to “strongly agree” in response to each individual statement. Results were broken down by gender as well as law school graduation year, either before or after 2000, and are captured in the tables below.

Figure 1. Attitudes about racial progress

Overall, there were significant differences in the levels of support for the various propositions addressed in the question. The most salient finding is that African American HLS graduates believe—quite strongly—that black lawyers continue to face discrimination in the workplace (5.7) and that employers should engage in affirmative action to counteract this disadvantage and to promote diversity in the profession (6.1). Black men were significantly more likely to support this latter proposition than black women (6.2 to 5.9), although support for affirmative action was high among both genders. These rankings are only slightly lower than those found in the 2000 survey (5.92 for discrimination and 6.3 affirmative action), suggesting that events over the past 16 years—including the election of President Obama—have not changed black HLS graduates’ perception of the way that race continues to structure legal careers.

What can be done?

Outside of this bedrock perception, attitudes about precisely how race continues to structure careers—and what to do about its continuing effects—were considerably more mixed. The only other issue in this set that elicited average agreement above “somewhat agree” (5) was the statement that “black lawyers have an obligation to use their legal skills to improve the black community” (5.3), signaling support for what David B. Wilkins has elsewhere called “the obligation thesis.”

“For African American lawyers, being technically proficient is not always enough,” says John W. Daniels Jr.

Interviewees were ambivalent about this obligation, however. “I do feel that way generally, but I don’t necessarily feel that I need to use my legal skills to do it,” says Howze, though she has and continues to do so personally. “It can be more challenging for lawyers to do that in the context of their jobs, unless they’re in the public-interest sector, because legal problems rarely present themselves that way.” She continues:

The idea of giving back overlaps with my idea of what it is to be a lawyer. I think it’s a really special job. We are officers of the court, conduits to justice, and we have kind of a unique interface with our political system. So I think we have a unique obligation to help people access justice. And in that way, I do feel that my sense of duty or calling is heightened by my identity. Having said that, I’m not sure what black lawyers should be doing that’s particularly different from what I believe all lawyers should be doing.

Although there was widespread agreement that black lawyers have such obligations, far fewer respondents agreed (3.7) that black lawyers were currently doing enough to discharge this duty. Like Howze, Jane pushed back against this particular notion. “I do feel that sense of obligation—I feel that it’s important in what I do and my own personal mission. But I don’t like to judge other attorneys of color who might be less connected. I don’t think anything helpful comes from that.” She continues:

Being a black attorney is already incredibly difficult. You are often the only one in the room, and sometimes even the only one in the building. In less racially diverse workplaces, it can feel as though your colleagues are constantly questioning your competency as an attorney. The more hostile work environments can leave folks mentally and emotionally exhausted, and simply unable to take on this whole other responsibility of fostering the next generation of black attorneys.

The survey also found there was fairly widespread disagreement with the proposition that “my race is an advantage in getting access to good work and/or professional opportunities” (3.2), suggesting that whereas black lawyers may sometimes be put on matters because of their race, black HLS graduates do not view their race as having been beneficial to their careers overall. This lands close to the findings of the 2000 survey, where on average respondents agreed with the obligation thesis (5.2) and disagreed with the suggestion that their race has been generally beneficial to their careers (3.0).

With respect to potential solutions to the problems that the color line still poses for black HLS graduates, both self-help (“black lawyers need to take more responsibility for their own careers”) and diversity training (“diversity training is an effective tool for combating the obstacles facing black lawyers”) garnered equal levels of modest support (4.5). The numbers change, however, when looking at specific subsets.

Interestingly, men were more likely to report supporting both self-help and diversity training than women (self-help: 4.7 men, 4.3 women; diversity training: 4.6 men, 4.3 women), as were those from the pre-2000 era (“era” here is defined as one of two groups: all respondents who graduated from HLS prior to 2000 versus all respondents who graduated in 2000 or later) when compared to those who graduated HLS in the post-2000 era (self-help: 4.7 pre-2000, 4.3 post-2000; diversity training: 4.5 pre-2000, 4.3 post-2000). The pre-2000 cohort of our 2016 survey is actually much more positive about diversity training than those who responded to our 2000 survey, where the average was a lukewarm 4.01. Conversely, on average, the pre-2000 respondents were more negative about self-help in the 2016 survey (4.5) than those in the 2000 survey (5.0). The data also shows men are significantly more likely than women to believe that professional opportunities for black lawyers have improved since they entered the bar (4.5 men, 4.1 women) and less likely than women to disagree with the proposition that their racial identity has become less important during the course of their career (3.5 men, 2.8 women). There is an era effect with respect to both of these variables as well, with pre-2000 era respondents significantly more likely to agree with these statements than those in the post-2000 era (improved prospects: 4.7 pre-2000, 3.6 post-2000; race less important: 3.3 pre-2000, 2.9 post-2000). These results are not surprising, however, given that post-2000 era graduates have had less time to observe these changes.

“The challenges facing African Americans in the legal profession are beyond role modeling,” argues Howze.

Finally, men are significantly more likely than women to believe that “progress for black Americans now depends more on economic change than on legal change” (4.6 men, 3.9 women). Neither men nor women nor graduates from the pre-2000 era report agree with this statement as much as those who responded to the 2000 survey, where the average level of agreement nearly passed “somewhat agree” (4.9). This last result provides some support for the view that the economic progress many black lawyers made during the Obama years has not translated into the kind of racial progress that black women in particular would like to see. This may in turn help explain why respondents remain only guardedly optimistic about the future for black lawyers (4.7), a response that is identical to what was found in the 2000 survey.

The Obama effect

This ambivalence is evident in respondents’ views about the effect of the Obama presidency. As Figure 2 demonstrates, none of the statements about the beneficial effects of Obama’s election garnered strong agreement of 5 or more on the survey’s seven-point scale, with only the statement that having the nation’s first black president “improved perceptions about the leadership potential of black lawyers” coming close to this level (4.7). Not surprisingly, those in the post-2000 era were significantly more likely to agree that Obama’s election inspired more blacks to go to law school, since many of those graduating in this era may be among this group and are certainly more likely to know others who are. None of the other three questions relating to the direct benefit of Obama’s presidency for black lawyers garnered more than mild agreement, with two of the three eliciting even less support.

Figure 2. Impact of the election of the first African American president

Reflecting on the importance of the Obama presidency to black lawyers, Daniels concedes that “it’s a very complicated subject.” In his view, there have indeed been positive effects for black lawyers, but we should not mistake this modest progress for racial equality:

No matter what they thought about his political views, people recognized President Obama’s high level of intellect and the ability to address and really think through complicated problems. That part of what he represented was really significant and important for black lawyers because in law, confidence and perception is so critical. For your colleagues and your clients to have confidence in you is really the sauce that drives your ability to succeed in a law firm environment.

The other part that is a lot more complicated is the degree to which people make a personal attachment to you and don’t put on top of that racial stereotypes. And this goes back to African American lawyers having this other requirement of creating an atmosphere of comfort in addition to being technically proficient. What’s complicated about the Obama legacy is you see a brilliant African American who becomes president and who is obviously technically very proficient and is just a brilliant guy, and then you see that much of the resistance to him as a person is built on a stereotype that this guy is “aloof.” Everybody talks about all of the emotional effects of Obama being president and people feeling proud and the fact that the country did it, etc., which is great. Everybody recognizes the guy is brilliant whether they agree with him politically or not. But there remains that air of discomfort that he and other African American lawyers are up against.

This belief that Obama is an inspirational figure is widely shared by all the interviewees. “Obama won in my first year of law school, and that was just incredible. It was inspirational,” remembers Jane. As far as impact on the profession, however, she has not noticed significant movement on issues facing black lawyers. She continues:

I would love to say that the election of Barack Obama was a huge milestone for black attorneys, but I don’t think that it was. I don’t think his presidency has improved recruitment or mobilized more black attorneys than before. And sadly, I don’t think Obama’s presidency impacted the structural and systemic inequities that are the root cause of the shortage of black attorneys. While I feel that both Barack and Michelle Obama are truly inspiring people, the community of black attorneys continues to face a great deal of adversity.

Like Jane, Howze speaks about the effect of the first black president and First Family in deeply personal terms. “Having Obama in office and having Michelle there has meant a lot to me personally, and I think it has been a shot in the arm to many black professionals, so from that perspective it’s been helpful. Has it helped drive business? I don’t think so. I haven’t seen it, but I wouldn’t necessarily expect to see business decisions affected by that.”

The takeaway here is not that the promise of an Obama presidency was an empty one. Far from it. Rather, it is that the election of the first black candidate to the highest office in the country can only do so much to address the myriad problems facing black lawyers. “The challenges facing African Americans in the legal profession are beyond role modeling,” argues Howze. She continues:

They’re beyond having a specific African American or a few African Americans in positions of power. We have this apprenticeship-type profession driven by a system that’s been in place for a long time, and over the years it has failed to keep up to the point where law is the least diverse of all the major professions. And it’s going to take a broader systemic effort—like what we’ve seen going on in the American Bar Association under Paulette Brown’s leadership, for example—to create actual policies that industry and law firms sign onto together to actually track, monitor, create standards, create incentives for us to work in tandem. This kind of thing has more promise in moving the needle than anything that I’ve seen or have heard about in a long time.

It is hard to expect movement on changes of this magnitude and depth running on inspiration alone. But these lawyers weren’t expecting the election of Barack Obama to flip any of these switches. The biggest impact of the Obama presidency is demonstrating that more progress is possible with big ideas (see “We Have Been Here Before”). And while this alone does not move the needle, perhaps others can. “The biggest change that I have observed is a willingness to raise the question without regard to the fact that the environment doesn’t really want you to raise the question,” says Daniels. “I think that’s healthy because if you don’t, it just keeps repeating itself.”

Want to know more?

“The New Social Engineers in the Age of Obama: Black Corporate Lawyers and the Making of the First Black President,” by David B. Wilkins

Abstract: In this article, I document the connection between the election of the nation’s first black president and the fledgling, but nevertheless important, creation of a new black “corporate” bar. Specifically, I argue that the new generation of black lawyers who have moved into important positions of power and responsibility in corporate America since the mid-1960s played a critical role in opening the door for an Obama presidency—and that understanding the experiences and attitudes of these new “social engineers” is critical to understanding the president’s approach to integrating his obligations as leader of all of the people and his expressed commitment to improving the lives of black people in the first decades of the 20th century.

My argument proceeds in four parts. Part 1 documents the important role that Charles Hamilton Houston’s and Thurgood Marshall’s original social engineers played in paving the way for Obama. As the president frequently acknowledges, he stands on the shoulders of these giants who quite literally laid the groundwork for his success. Indeed, before running for the Illinois State Senate in 1996, Obama’s career was eerily reminiscent of the great social engineer Wiley Branton Sr., for whom the symposium at Howard Law School, where this article appears, is named. But for all his connections to the original social engineers, it was a new generation of black lawyers who actually propelled Obama’s meteoric rise from the Illinois State Senate to the U.S. Senate, and eventually to the presidency.

Part 2 charts the rise of this new generation and explains both their connections to, and differences from, the prior generation of social engineers. Although much has rightly been made of the theme of generational change in Obama’s ascendance, many have mischaracterized both the formative experiences and the commitments of what I will refer to as the Brown generation of black lawyers who came of age in the years following that historic decision. Using original interview data and other sources, I document these experiences and commitments and demonstrate how this generation’s unique status as black professionals with role-related obligations that are separate from, and potentially in opposition to, their continuing commitment to use their positions in corporate America to advance the cause of racial justice both drew this new black legal elite to Obama and in turn shaped the way in which the president has responded to similar tensions between his role as president and his desire to use the powers of his office to improve the plight of black Americans.

Part 3 explores these tensions by examining how Obama has attempted to use the office of the presidency to advance the cause of racial justice. In each of the three major avenues through which he has pursued this goal—using the “bully pulpit” to assist traditional civil rights organizations and to inspire individual responsibility and high aspirations among blacks generally; placing talented black professionals in important positions in his administration; and, most important, promising to improve the lives of black Americans through a combination of vigorous enforcement of antidiscrimination laws and a series of new race-neutral social programs targeting areas of particular concern to blacks—the president has employed strategies also employed by the Brown generation. Not surprisingly, many of the same problems that the nation’s first black corporate lawyers encountered when they attempted to negotiate the complex and sometimes conflicting demands of the “equal opportunity” and “social justice” legacies of the Brown decision have also come to haunt the nation’s first black president as he has engaged in an even more public balancing act between his obligation (and right) to be the president of all the people and his commitment to use his office to improve the lives of black people in this country.

Part 5 closes by briefly examining how the election of the first black president presents unique opportunities—but also poses unique challenges—for this country’s still fragile black bar.

To read the full paper, click here.

1 2 Single Page

Where Are Black Lawyers Today? Volume 3 • Issue 5 • July/August 2017

Cover